R v Leung & Monaghan No. Sccrm-99-27, Sccrm-99-28 Judgment No. S130

R v LEUNG & MONAGHAN

[1999] SASC 130

Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ

DOYLE CJ.

Introduction

The Court has before it two appeals against sentence.
Each appellant pleaded guilty to one count of taking part in the production of a prohibited substance, namely cannabis, contrary to s32(1)(b) of the Controlled Substances Act 1984 (“the Act”).
The amount of cannabis alleged in the Particulars of Offence was 14.765 kilograms.
Accordingly, the penalty was a fine not exceeding $500,000 or imprisonment for a term not exceeding 25 years.
The District Court judge sentenced Mr Leung to imprisonment for twenty months. He said that but for his plea of guilty he would have sentenced him to imprisonment for thirty months. He fixed a non-parole period of twelve months.
The judge sentenced Mrs Monaghan to imprisonment for eight months. But for her plea of guilty it would have been imprisonment for twelve months. He suspended the sentence upon her entering into a bond to be of good behaviour for eighteen months.
Each appellant claims that the sentence was passed on an incorrect basis, and that the sentence is in any event excessive.

Facts

On 22 June 1998 police went to premises at Burnside. The premises were rented by Mr and Mrs Monaghan. Mr Leung, who has a relationship with Mrs Monaghan’s sister, was at the premises. Apparently he was living there at the time.
In a room in the premises the police found equipment for the hydroponic growing of cannabis. They found fourteen plastic pots with a cannabis stump in each, suggesting that a cannabis plant had been grown in each pot. They found a large amount of cannabis in the form of cuttings drying in the room. When weighed later, the cuttings weighed 14.765 kilograms. The cannabis had not dried out fully. It was acknowledged by the prosecutor that, when completely dried, the weight of the cannabis would be less than the recorded weight, and that the reduction in weight would be to about one quarter or one third of the charged weight. The judge made allowance for the fact that, had the crop been seized later in the drying process, it would have weighed less.
Mr Leung and Mrs Monaghan were sentenced on the following basis.
The plants had been grown by Mr Monaghan. Mrs Monaghan lived at the premises with Mr Monaghan. She was opposed to the growing of the cannabis there, and did not assist Mr Monaghan in any way. Nevertheless, she had acquiesced in the use of the premises in this way. As the judge said to her, “... because of the dynamics of your relationship you have played a submissive role and have found yourself unable to do more than protest his actions.” While on the point, it is relevant to note that as the premises were jointly rented Mr Monaghan was as much a tenant of the premises as was Mrs Monaghan.
Mr Monaghan had been imprisoned some ten days before the police detected the crop in question. He had been imprisoned in connection with other cannabis crops. Mr Monaghan rang Mr Leung from prison. He told Mr Leung to cut the crop so that it would not go to waste. He told Mr Leung that he could have some of the crop. Mr Leung cut the crop and hung it up to dry. He remained at the house to help Mrs Monaghan and her children. The amount of cannabis that Mr Leung was to receive was not resolved, but Mr Leung said that it was only for his personal use, and not for selling. The judge did not make a finding on this matter. I consider that it is unnecessary to do so. Mr Leung’s offence is his involvement in the production of cannabis, and not the proposed use of his share of the crop.
The judge accepted that Mr Monaghan was the dominant figure in these arrangements. However, as he pointed out, Mr Leung and Mrs Monaghan had involved themselves in a serious offence.

The basis upon which the sentence was passed

The offence is taking part in the production of cannabis. Section 32(1) of the Act provides as follows:
“32.(1).... A person shall not knowingly -
(a).... manufacture or produce a drug of dependence or a prohibited substance; or
(b)take part in the manufacture of production of such a drug or substance; or
(c).... sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e).... have such a drug or substance in his possession for the purpose of the sale, supply or administration of that drug or substance to another person.”

Section 32(5) provides that a person who contravenes the section shall be guilty of an offence and goes on to provide for the penalty. I will return to this provision.

The definition of “produce” is found in s4(1) of the Act. It is as follows:
“‘produce’, in relation to a substance, means to produce by any method whatsoever, including cultivation, and ‘production’ has a corresponding meaning;”

There is no definition of cultivation.

The concept of taking part in the manufacture, production, sale, supply or administration of a substance is given an expanded meaning by s32(4). The meaning given is a wide one. In particular, it includes suffering any step in the process of production to be taken in premises of which a person is the occupier. Having regard to the expanded definition, subject to the point raised on appeal, there is no doubt that Mr Leung took part in the process of production and that Mrs Monaghan did so as well, in particular on the basis just identified.
As I mentioned a moment ago, the applicable penalties are established by s32(5) of the Act. Part A of subs(5) deals with offences where the drug or substance is provided to a child or possessed for provision within a school zone (I use “provide” and “provision” as a convenient term to embrace a number of situations). Part B of subs(5) deals with all other offences under s32. It deals separately with offences where the subject of the offence is cannabis or cannabis resin, and then offences where the subject of the offence is not cannabis or cannabis resin. The provision in relation to cannabis and cannabis resin is to be found in subpar(a), which provides as follows:
“(a).......... where the substance the subject of the offence is cannabis or cannabis resin -
(i).... if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection - a penalty of both a fine not exceeding $500 000 and imprisonment for a term of not exceeding 25 years; or
(ii)if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection but one-fifth or more of that amount - a penalty not exceeding $50 000 or imprisonment for 10 years, or both; or
(iii).. if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than one-fifth of the amount prescribed for the purposes of this subsection - a penalty not exceeding $2 000 or imprisonment for 2 years, or both;”
The prescribed amounts are found in s32(5a) which provides as follows:
“(5a)....... The amounts of cannabis or cannabis resin prescribed for the purposes of subsection (5) are -
(a).... for cultivation of cannabis plants - 100 plants or, if a lesser number is prescribed by regulation, that number;
(b)for any other offence involving cannabis - 10 kilograms or, if a lesser amount is prescribed by regulation, that amount;
(c).... for an offence involving cannabis resin - 2.5 kilograms or, if a lesser amount is prescribed by regulation, that amount.”
In short, and putting cannabis resin to one side, the penalty scheme is as follows. The maximum penalty is attracted by offences involving more than 100 plants or 10 kilograms of cannabis. The mid range penalty is attracted by offences involving less than that, but 20 or more plants or 2 kilograms of cannabis or more. The low range penalty is attracted by offences involving 19 plants or less, or less than 2 kilograms of cannabis.
As will be apparent, the judge passed sentence on the basis that the offences attracted the maximum penalty, because the quantity of cannabis involved was more than 10 kilograms.

The attack upon the basis upon which sentence was passed

The submission on appeal is that the harvesting of the cannabis, and hanging it up to dry, was the cultivation of cannabis plants. The next step in the submission is that only 14 plants were involved. This is an inference to be drawn from the fact that 14 pots, each containing a stump, were found on the premises. Accordingly, the submission is that the offence attracted a penalty in the lower range, despite the manner in which it was particularised.
I should record that the Director of Public Prosecutions does not accept that only 14 plants were cultivated. However, there is no basis upon which some other number can be identified.
Submissions were made to the District Court judge, and sentence was passed, on the basis of a plea of guilty to the charge as summarised above. Not surprisingly, bearing in mind that at that stage all parties treated the offences as attracting a penalty in the maximum range, the District Court judge proceeded on that basis. It was only after sentence was passed that the point now under consideration was raised. The District Court judge was asked to recall the sentence. He heard submissions on the matter but declined to do so.

Production and cultivation

Mr Lyons, counsel for Mr Leung, submits that cultivation is a term with a wide meaning, embracing any step up to and including the harvesting and drying of cannabis. Indeed, as I understand his submission, it is that cultivation and production in s4(1) of the Act are coextensive, and that anything that is the production of cannabis is also the cultivation of cannabis. However, he acknowledged the difficulty that that submission faced.
Mr Lyons relies upon the wide meaning attributed to cultivation in The Queen v Giorgi and Romeo (1982) 31 SASR 299. In that case the Court considered the meaning of “cultivates” in s5 of the Narcotic and Psychotropic Drugs Act 1934. However, in that section a distinction was drawn between producing a drug and cultivating a prohibited plant. Each was a separate offence. There was good reason, in the context of that section, to attribute to “cultivates” a wide meaning, embracing the harvesting of a crop and subsequent dealing with it.
In the context of the Act, there is no reason to give such a wide meaning to “cultivation”. Indeed, there is reason to do the contrary. The fact that production is defined as including cultivation suggests that the concept of cultivation is narrower than the concept of production. Nor is cultivating a drug or prohibited substance an offence, whereas producing a drug or prohibited substance is an offence. In my opinion, in the context of the Act, there is every reason to give cultivation a meaning that refers to the process of growth, as distinct from the harvesting of something that is grown and subsequent dealings with the crop.
Accordingly, applying the ordinary principles of construction, I would reject the submission that a broad meaning is to be given to “cultivation”, and would lean towards a narrow meaning.
Mr Lyons also points to the terms in which s32(5a) is expressed. He makes the point that subpar(a) refers to an amount prescribed “for cultivation of cannabis plants”, and that subpar(b) refers to an amount prescribed “for any other offence involving cannabis.” He suggested that Parliament was distinguishing between the offence of cultivation, and then any other offence. He argued that in s32(5a) “cultivation” must be taken to be synonymous with production, and that Parliament has indicated that any offence involving the production of cannabis plants was to be dealt with by reference to the number of plants involved.
I agree that s32(5a) is somewhat awkwardly expressed. However, the cultivation of cannabis plants is not an offence. The relevant offence is producing a prohibited substance which, by virtue of the definition in s4(1) of the Act, may in a particular case take the form of cultivation. In my opinion s32(5a) is to be read as referring to production in the form of cultivation on the one hand, and production that is not cultivation and other offences involving cannabis on the other hand.
In other words, when the conduct that is charged as production is in fact cultivation, the penalty range is then to be determined by reference to s32(5a)(a). In all other cases involving cannabis, including production that is not cultivation, the penalty is governed by s32(5a)(b).
Finally, Mr Lyons pointed to anomalies that might arise if he is not correct. He gave, as an example, the instance of two persons jointly charged with production of cannabis, one of them having watered the plants while they were growing and the other having handled the leaves after they had been cut. He made the point that the sentence for the former would be determined by reference to the number of plants, because the former took part in cultivation, and that the sentence for the latter would be determined by reference to the amount of cannabis, because the latter took part in production that is not cultivation. Applied to the facts of the present case involving 14 plants, the cultivator would face a penalty in the lowest range and the producer a penalty in the highest range.
I agree that such anomalies can occur, but that is an inevitable result of the terms in which s32 is expressed. To illustrate this point, I suggest the following example which may be slightly unrealistic, but is not completely unrealistic. A person might grow 105 cannabis seedlings in pots. At that stage the person faces a penalty for cultivation in the maximum range. Two weeks later, due to poor management, 40 plants might have died. If detected at this stage the person faces a penalty for cultivation in the middle range. A few weeks later the person might have culled the male plants and might have suffered some further losses, the number of plants now falling below 20. The person now faces a penalty in the lowest range. At the second and third stages of this example the plants might be carrying a quantity of leaf which is such that, if the plants were then harvested, a person handling the harvested leaves would attract a penalty in a higher range than that attracted by the number of plants. The weight of the leaves, when relevant in fixing penalty, will depend upon the stage that drying has reached. As in this case, the leaves when weighed might attract a penalty in the highest range although when completely dried they might attract a penalty in the middle range. In cases that have come before this Court where the charge is cultivation, the Court has been pressed with the argument that the plants were not thriving and that had the person been charged after the plants were harvested, the quantity of the crop would have put the person into a lower penalty range than does the number of plants.
I give these examples merely to make the point that s32 is structured in a manner that will produce anomalies like this, and that the existence of such anomalies cannot be attributed solely to the giving of a narrow meaning to “cultivation”. Nor are they eliminated by giving it a wide meaning.
None of the matters relied upon by Mr Lyons persuade me that “cultivation” in s32 should be given a meaning that extends beyond conduct associated with the growing of plants. There can be production of cannabis that is not cultivation, although all cultivation is necessarily production.
The drying of cannabis leaves that have been cut or stripped from cannabis plants is an activity that is the production of cannabis, but not the cultivation of cannabis. I incline to the view that the harvesting or cutting of the cannabis leaves is likewise the production of cannabis that is not cultivation, but it is not necessary to decide that point in this case.
Even if Mr Leung was guilty of the production (by cultivation) of cannabis when he harvested the leaves, and I doubt whether he was, he was guilty of producing cannabis (not by cultivation) when he hung the leaves out for drying. Likewise, although Mrs Monaghan was guilty of taking part in the production (by cultivation) of cannabis when she allowed her husband to use the premises to grow the plants, she took part in the production of cannabis (not by cultivation) when she permitted Mr Leung to use the premises for the drying of cannabis.
The offence was properly particularised, and the District Court judge passed sentence on the correct basis.
However, I agree that the sentence provisions of s32 can give rise to results which some would regard as anomalous, and are expressed in terms that can give rise to some curious problems. In my opinion these provisions warrant some further consideration by Parliament.

Were the sentences excessive?

Mr Leung was twenty-five years of age at the time. He has a number of minor convictions, including an offence of producing cannabis. That offence attracted a small fine, and so must have involved a small quantity of cannabis or a small number of plants.
Mr Leung was a daily user of cannabis.
The judge sentenced Mr Leung on the basis that his role was subordinate to that of Mr Monaghan. However, not surprisingly he found that Mr Leung willingly assisted Mr Monaghan in a commercial enterprise. He did not accept a submission that Mr Leung felt compelled to comply with Mr Monaghan’s wishes. The judge accepted that, when fully dried, the cannabis might have weighed less than 10 kilograms.
In relation to Mr Leung, the judge referred to all relevant matters. I can find no error of principle in his approach.
We were referred to a number of cases in which this Court has considered sentences imposed for producing cannabis. In some of them the production involved cultivation, in others it did not. To begin with, I agree that there is a considerable range in the sentences that have been imposed, including sentences reviewed by this Court. The cases to which we were referred include cases in which the offence involved cultivation, the number of plants exceeded 100, but the penalty imposed was either not a great deal more than that imposed on Mr Leung or, in some cases, was less than that imposed on Mr Leung. The answer to the argument based on these cases is that Mr Leung fell to be sentenced by reference to the quantity of cannabis involved, and not by reference to the number of plants from which the leaf had been obtained. I repeat, in any event, that it is not to be assumed that the number of plants was necessarily 14. In other words, Mr Leung faced a penalty in the maximum range because of the quantity of cannabis that was produced, just as the offenders in other cases face the maximum range because of the number of plants they cultivated. It is not to the point to say that persons who cultivated a much larger number of plants receive penalties not much greater than Mr Leung, or even less. Mr Leung cannot rely upon the number of plants from which the leaf came to put himself into a lower penalty range than the range attributable to the quantity of cannabis in the production of which he took part.
Having given the matter careful consideration, I am satisfied that the sentence imposed by the judge fell within the permissible range for the offence with which he dealt. In saying that, I have made allowance for the fact that the cannabis probably came from a number of plants that, if the offence were cultivation, would have attracted a lower penalty range. It has to be emphasised that Parliament has made it clear that, whatever some people in the community may think, the production of cannabis is a serious offence. The penalties specified make that clear. Cases coming before the courts of this State demonstrate that the offence is prevalent. In my opinion the courts are bound, in the circumstances, to impose sentences in which deterrence plays a significant part. The courts, if necessary, will have to increase the level of sentence being imposed should that appear necessary to deter offenders.

Under all the circumstances, it cannot be said that the sentence imposed was excessive.
In my opinion the judge did not err in declining to suspend the sentence. On his findings this was an ordinary case of its type. There were no circumstances about the offence or pertaining to Mr Leung that required the judge to suspend the sentence.
I turn now to Mrs Monaghan’s appeal.
The lenient treatment accorded to her reflects the difficulty of her position. Her husband was determined to proceed with the crop, whether she agreed to him doing so or not. She is guilty only because she permitted her husband and fellow tenant to use the premises as he did. Her role was a very minor one.
I feel some sympathy for Mrs Monaghan. On the other hand, Parliament has made it very clear, by the expanded meaning given to taking part in production, that it does intend to punish those who have a limited connection with the production of drugs.
Mrs Monaghan was twenty-eight years of age when sentenced. Her only conviction was an on-the-spot fine for producing cannabis in 1996. The judge accepted that this was another crop cultivate by Mr Monaghan. The material available to the judge suggested that Mrs Monaghan was, subject to the effect of her husband’s influence, unlikely to offend again.
Having regard to the very limited part played by Mrs Monaghan, and to the fact that she did no more than submit reluctantly to the wishes of her husband, I consider that a sentence of eight months’ imprisonment was too severe. I would reduce the sentence to one of four months’ imprisonment. Like the District Court judge, I would suspend that sentence upon Mrs Monaghan entering into a bond in the sum of $500 to be of good behaviour for a period of twelve months (rather than the eighteen months required by the judge) and requiring Mrs Monaghan to undergo the supervision of a probation officer.

Conclusion

In my opinion the appeal against sentence by Mr Leung should be dismissed. The appeal against sentence by Mrs Monaghan should be allowed. The sentence imposed by the District Court on Mrs Monaghan should be set aside. For that sentence there should be substituted a sentence of four months’ imprisonment, suspended upon Mrs Monaghan entering into a bond in the sum of $500 to be of good behaviour for a period of twelve months and during that time to be under the supervision of a probation officer.
BLEBY J. I agree with the orders proposed by the Chief Justice and with the reasons that he has given.
MARTIN J. I also agree with the orders proposed by the Chief Justice and with the reasons that he has given.

[1999] SASC 130

22 April 1999